WILLIE B. THOMAS, APPELLANT,
v.
T & T TRUCKING AND INSURANCE COMPANY OF NORTH AMERICA, APPELLEE

Fla. 1st DCA | 1980-04-18
No. QQ-489
MILLS, C. J., and SHIVERS, J., concur.
382 So. 2d 449 Florida District Court of Appeal, First District (1980) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Willie Thomas appealed a workers' compensation judge's order limiting his benefits to the employer's voluntary 5% permanent partial disability rating, denying attorney's fees and costs. The appellate court reversed and remanded, holding the judge erred by failing to address statutory merger of his prior disability with the subsequent injury and by not ruling on responsibility for medical bills or awarding attorney's fees for benefits secured.


Holding

The court held the judge erred on all three grounds: (1) the judge must make specific findings on whether a statutory merger occurred and apply appropriate deduction of benefits provisions unless the resulting compensation is less than would have resulted from the subsequent injury alone; (2) the judge must determine whether the carrier is responsible for Dr. Snyder's medical bills; and (3) the judge must award Thomas a reasonable attorney's fee based on benefits secured.


Headnotes

[1] A judge of industrial claims must make a specific finding as to whether a prior disability merged with a subsequent injury to cause a permanent partial disability greater…

[2] When medical evidence raises the issue of merger of prior and subsequent disabilities, the order must include specific findings regarding whether merger applies.

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Key Quotes

“the JIC erred in failing to make a finding on whether Thomas's prior disability merged with the permanent partial disability received in the second accident "to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury . alone . . . ." Section 440.15(5)(c)”

Establishes the core issue on appeal—the judge's failure to address statutory merger of disabilities

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Facts & Procedural History

Thomas, a truck driver, sustained two compensable work injuries: one while employed by Tavilla Company (resulting in a prior 10% permanent partial dis…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Claimant Thomas appeals a judge of industrial claim’s order finding him entitled to no greater benefits than those volunteered by the employer and carrier, and denying him attorney's fees and costs. The employer and carrier had voluntarily accepted Thomas as 5% permanently, partially disabled.

We reverse and remand on the issues of payment of medical bills and attorney’s fees, and remand for clarification on the question, of merger. Claimant, a truck driver, was twice com-pensably injured: Once, while employed by Tavilla Company, and second the subject of the present claim, while in the course of employment with T and T. Claim litigation with Tavilla was concluded with the entry of a final order approving the parties’ joint stipulation, which, among other things, provided that Thomas be paid a lump sum amount of $1750 for temporary and permanent disability.

We agree that the JIC erred in failing to make a finding on whether Thomas’s prior disability merged with the permanent partial disability received in the second accident “to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury . alone . . . .” Section 440.-15(5)(c).

Aside from the prior adjudication of permanent partial disability and lump sum compensation, the medical evidence raised the issue of merger to the extent that the order is unclear without specific findings as to whether it applied. Dr. Gilbert saw Thomas on December 8, 1978 and found him 15% permanently, partially disabled, assigning 10% to the lower back sprain, 5% of which was due to the February accident and 5% to the August accident. Dr. Aron stated Thomas was 5% permanently partially disabled as a result of the August accident. When he learned Thomas had previously injured his back and was rated 10% permanently partially disabled,1 he stated he would find Thomas 15% permanently, partially disabled, adding the 5% attributable to the August accident to the existing 10% permanent partial disability. Other medical testimony was similar. Under the circumstances, we agree the JIC should make a specific finding as to whether a Section 440.15(5)(c) merger occurred, and, in the case of a positive finding, should apply the deduction of benefits provisions, unless it is found the resulting compensation is “less than that allowed for the degree of disability that would have resulted from the subsequent injury ... if the previous disability had not existed.” Id.

We also agree with Thomas that the judge erred in failing to rule specifically on whether the employer-carrier was responsible for Dr. Snyder’s medical bills. There was no record of his ever being deauthor-ized by the employer-carrier. Moreover, we agree that Thomas’s attorney secured payment of certain of Dr. Snyder’s bills through February 1, 1978, which the employer-carrier had resisted paying up until the date of the final hearing.

On remand, the deputy will make appropriate findings regarding whether merger occurred under Section 440.15(5)(c), and whether the carrier is responsible for Dr. Snyder’s medical bills, and will award Thomas a reasonable attorney’s fee based on benefits secured.

Reversed and remanded for proceedings consistent with this opinion.

MILLS, C. J., and SHIVERS, J., concur. . Dr. Chariff, a chiropractic physician who treated claimant for his first compensable accident, assigned a 10% permanent partial disability to the body as a whole, 7'h% attributable to the back and 2lh% to the ankle.


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Citator

Cited By

  • Betancourt v. Sears Roebuck & Co. & Kemper Ins. Co., 693 So. 2d 680 (Fla. 1st DCA 1997)
    …ber & Supply Co. v. Roy, 382 So. 2d 51 (Fla. 1st DCA 1980); Estech General Chemicals Corp. v. Graham, 424 So. 2d 138 (Fla. 1st DCA 1982); Washington Square Associates, Ltd. v. Bourne, 408 So. 2d 809 (Fla. 1st DCA 1982); and Thomas v. T & T Trucking, 382 So. 2d 449 (Fla. 1st DCA 1980). These cases stand for the proposition that when a ripe claim is presented, and the JCC fails to rule on it, the proper resolution is to reverse and remand the case for entry of an appropriate order, because the JCC failed his or…
  • …dition, her compensable accident resulted in a disability which is greater than that which would have resulted from the compensable accident alone, so that a higher disability rating is mandated by Section 440.15(5)(c). See Thomas v. T & T Trucking, 382 So. 2d 449 (Fla. 1st DCA 1980); Chaffee v. Miami Transfer Company, Inc., 288 So. 2d 209 (Fla.1974); Cypress Gardens Citrus Products v. Murchison, 240 So. 2d 803 (Fla.1970); and Media General Corporation v. Curry, 382 So. 2d 686 (Fla.1980). In addition to the f…

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